JUDGMENT : V. Chitambaresh, J. 1. Shall a witness be required to state for whom he has voted at an election? Is there any statutory embargo for disclosing how he voted? The issue arises under the Kerala Panchayat Raj Act, 1994 (the 'Act' for short). 2. The petitioners have been summoned to tender evidence as witnesses in an election petition filed challenging the election to Ward No. 11 of Dhalampady Grama Panchayat in Kasaragod district. The election has been called in question under Section 102 (1) (d) (iii) of the Act on the ground that eight voters have indulged in double voting and that there has been an improper reception of their void votes. The main thrust in the election petition is that the eight voters have voted in more than one constituency of the same level in violation of Section 76 (3) of the Act. The election petition seeks to set aside the election of the second respondent and declare the first respondent as the duly elected candidate after eschewing the eight void votes. The petitioners are two out of the eight voters who challenge in this Original Petition the witness summons issued to them in O.P. No. 15/2010 on the file of the court of the Munsiff of Kasaragod. 3. The petitioners contend that they would be forced to depose before court to whom they have cast their votes if summoned as witnesses infringing the secrecy of voting postulated under Section 96 of the Act. The petitioners maintain that the court below should have acted with circumspection in issuing witness summons to them which has the deleterious effect of affecting their privilege. The petitioners assert that the secrecy of the ballot should be maintained to ensure free and fair elections and that they should not be compelled to tender evidence in court. The witness summons issued to the petitioners are sought to be quashed on that score in this Original Petition filed under Article 227 of the Constitution of India. 4. I heard Mr. V.V. Asokan, Advocate on behalf of the petitioners whose arguments were really novel. 5. Section 96 of the Act reads as under: "96. The witness summons issued to the petitioners are sought to be quashed on that score in this Original Petition filed under Article 227 of the Constitution of India. 4. I heard Mr. V.V. Asokan, Advocate on behalf of the petitioners whose arguments were really novel. 5. Section 96 of the Act reads as under: "96. Secrecy of voting not to be infringed--No witness or other person shall be required to state for whom he has voted at an election." This is in pari materia with Section 94 of the Representation of the People Act, 1954 which reads as under: "94. Secrecy of voting not to be infringed-No witness or other person shall be required to state for whom he has voted at an election." The Supreme Court has in S. Raghbir Singh Gill Vs. S. Gurcharan Singh Tohra and others [AIR 1980 SC 1362] held as follows: "If Section 94 is interpreted to mean to be a privilege of the voter to divulge or not to divulge how he voted and if he chooses not to divulge, Section 94 protects him in as much as he cannot be compelled to divulge that information, then it does not stand in conflict with the other important principle of free and fair elections to sustain parliamentary democracy. When it is said that no witness or other person shall be required to state for whom he has voted at an election, it only means that both in the court when a person is styled as a witness and outside the court when he may be questioned about how he voted though he would not have the character or the qualification of a witness yet in either situation he is free to refuse to answer the question without incurring any penalty or forfeiture. That guarantees the vital principle behind secrecy of ballot in that the voter would be able to vote uninhibited by fear. But if he chooses to open his lips of his own free will without direct or indirect compulsion and waive the privilege, nothing prevents him from disclosing how he voted. No provision was brought to our notice which would expose him to any penalty if a voter voluntarily chooses to disclose how he voted or for whom he voted." 6. Again the Supreme Court has in Nayini Narasimha Reddy Vs. No provision was brought to our notice which would expose him to any penalty if a voter voluntarily chooses to disclose how he voted or for whom he voted." 6. Again the Supreme Court has in Nayini Narasimha Reddy Vs. K. Laxman [(2006) 5 SCC 239] held as follows: "Secrecy of ballots indisputably goes to the root of democracy, but the same in our opinion may not itself be a ground to refuse issue of summons to the witnesses, Section 94 of the Act merely confers a privilege upon a voter. He may even waive his right. It is not in dispute that any person can be produced as a witness by the parties to an election petition. Witnesses so produced on behalf of the parties without any summons being issued would be at liberty to disclose in the court as to in whose favour he had exercised his right of franchisee. It is, therefore, evident that the question as to whether a witness will exercise his right/privilege conferred in terms of Section 94 of the Act is a matter of volition". Later a constitutional bench of the Supreme Court in Kuldip Nayar Vs. Union of India [(2006) 7 SCC 1] has observed as follows: "Thus, even under the elections that continue to be based on the principle of secrecy of voting, it is for the voter to choose whether he wishes to disclose for whom he had voted or would like to keep the secrecy intact. If he so chooses, he can give up his privilege and in that event, the secrecy of ballot should yield. Such an event can also happen if there is fraud, forgery or other illegal act and the disclosure sub serves the purpose of administration of justice". 7. It is therefore open to the petitioners to exercise their privilege under Section 96 of the Act and refuse to answer the question, if any, put to them as to for whom they had voted in the subject election. It is also open to them to waive this privilege and disclose as to in whose favour they had exercised their right of franchise since the same is a matter of pure volition. It is also open to them to waive this privilege and disclose as to in whose favour they had exercised their right of franchise since the same is a matter of pure volition. The jurisdiction to issue summons on an application filed by a party to the election petition under Order XVI Rule 1 (2) of the Code of Civil Procedure is however not in any way abrogated. Section 96 of the Act does not provide for a total embargo on a party to an election petition to cite a voter as a witness and the compulsion to speak about his electoral preference is alone prohibited. Thus Section 96 carves out an exception to Section 97 of the Act and Section 132 of the Evidence Act as otherwise a witness cannot refuse to answer a question which is relevant to the matter in issue even on the pain of self-incrimination. 8. The purpose of summoning the petitioners is evidently to prove their signatures allegedly found in the voters register or the counter foil of the ballot paper by comparing it with other admitted signatures. The endevour of the first respondent is to establish that the petitioners have voted in more than one constituency so that their votes can be eliminated. The question as to in whose favour they have exercised their electoral preference does not now arise as the ballot boxes have not hitherto been opened by the court below after the trial. The Supreme Court in Smt. Rekha Rana Vs. Jaipal Sharma and others [AIR 2009 SC 2946] has in this context observed as follows: "From marked electoral rolls, it is only possible to ascertain whether or not a vote had been cast in the name of a voter from a particular polling booth but it is never possible to decipher therefrom as to who is the beneficiary of the said vote as there is no indication on the electoral roll showing for whom the voter had cast his vote. It is to be borne in mind that the marked electoral roll is maintained primarily for the purpose of identifying the elector and as such, we fail to see how its production would impair the 'secrecy of ballot' principle." Even otherwise it is settled by a long line of decisions that the rule of 'secrecy of ballot' applies only to a validly cast vote and not to avoid vote and has to at any rate yield to the principle of 'purity of election' which is the hall mark. 9. No grounds sufficient enough to quash the summons issued to the petitioners have been made out and the obvious attempt is to stall the election petition which deserves to be tried expeditiously under the Act. The Original Petition is rejected in limine.